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    Derrida Theforceoflaw PDF

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    of 36
    FORCE OF LAW The “Mystical Foundation of Authority” (Note: The frst part of this text, “Of the Right to Justice/Prom Law to Justice [Du droit ta justice]?! was read at the opening of a colloquium organized by Drucilla Comnell at the Cardozo Law School ‘in October 1989 under the title,"Decon- struction and the Possibility of Justice” which gathered philosophers, literary theo- tists and legal scholars (notably representatives of the movement called, in the US, “Critical Legal Studies"). The second part of the text, “First Name of Benjamin [Prénom de Benjamvin],” was not reed aloud, but the text itself was distributed among the participants. ‘On April 26, 1990, the second part of the same lecture was read atthe opening of another colloquium organized at the University ot California-Los Angeles by Saul Friedlander under the title “Nazism and the ‘Final Solution’: Probing the Limits of Representation” ‘To this second part were added a foreword and a postscript that are here reproduced, This version adds afew developments and some notes to the prior versions published in prior editions and foreign languages in the form of article or book. 1 Tanto’ note: The tronalation of the word droitinto English is notrisly ficult sub tide makes cleat The word carries the sete of "law" and “code of law? ad the sense o “right” (in “the piosopty of righ” bat lo ofcourse ax nthe “ght > sre” oc oman ight"). The word lav has seemed here the mos economical trnation, even fmt entirely appropriate in al instances. One thould alo keep ising that thie choice for teanslation does raise the problem of differentvtiag tetneen aw (do) and a (le) Tonite his diference and since the word droits wed with much greater fequency in Drs’ text [ave included the French iin rackets only when relevant. all [ther eaten whe the words “law” (in the singular orright”appea in dhe present trandaton tis con Stony a3 twandation of rot 2. Tent’ note: Ck. Probing the Lit of Representation: Nexon ad he Final Solution”, Sxl Friedlander (Catbehdge, Mas: Harvard University Press, 1992). 230 FORCE OF LAW an |: OF THE RIGHT TO JUSTICE/FROM LAW TO JUSTICE “est pour moi un devoir, je dois madresser vous en anglais, Ths is for me a duty, must address myself to you in English, ‘The title of this colloquium and the problem that I must—as you transitively say in your lenguage—eddress, have had me dreaming for months. Although I have been entrusted withthe formidable honor ofthe “keynote address” had nothing to do with the invention ofthis title, nor withthe implicit formulation ofthe problem. “Deconstruction and the Possibility of Justice”: The conjunction “and” brings together words, concepts, perhaps things that do not belong to the same category. A conjunction such as and dares to defy order, taxonomy, and classificatory logic, no ‘matter how it operates—by analogy, distinction or opposition. An ill-tempered speaker might say, "Ido not see the connection: no rhetoric could bend itself to such an exercise. I am quite willing to try to speak of each of these things or these cate: gories (deconstruction; ‘possibility’ justice’) and even of these syncategoremes (ang; the; of), but not at all n this order, this taxonomy or this syntagm.” Such a speaker would not merely be in a bad temper, he would be in bad faith. ‘And even unjust. For one could easily propose a just interpretation, that sto say in this case an adequate and Incid—and so rather suspicious—interpretation, of the tite's intentions or ofits vouloir-dire. This title suggests. a question that itscf takes the form of a suspicion: Does deconstruction ensure, permit, suthorize the possibility of justice? Does it make justice possible, ora discourse of consequence on justice and on the conditions ofits possiblity? Yes,some would replys no, would the other party. Do the “deconstructionists” have anything to say about justice, anything to do with it ‘Why, basically do they speak of it so litle? Does it interest them, finally? Is it no, as some suspect, because deconstruction does not in itself permit any just action, any valid discourse on justice but rather constitutes a threat to law, and ruins the condi- tion of posibility of justice? Yes, some would reply; no, replies the adversary. With tis frst fictive exchange one can already find equivocal slippages between law and justice. The suffering of deconstruction, what makes it suffer and what rakes suffer those who suffer from it is pethaps the absence of rules, of norms, and definitive criteria to distinguish in an unequivocal manner bebween law and justice, It is therefore a matter of these concepts (normative or not) of norin, of rule or criteria. It is matter of judging what permits judgment, of what judgment itself authorizes . Such would be the choice, the “either/os?”*yes or no” that one can suspect in this, title To this extent, the ttle would be virtually violent, polemical, inquisitorial. One can fear that it contains some instrument of torture, a manner of interrogation that, ‘would not be the most just. Needless to say already, 1 will not be able to offer cy ACTS OF RELIGION any response, at least no reassuring response, to any questions put in this way cither/ox? “yes or no”), to either of the two expectations formulated or formal- ized in this way. Jedois, donc, est ici wn devoir, m’adresser@ vous en anglais. So T must, itis here a duty, addeess myself to you in English, Je le dois—this means several things at once: 1. Je dois parler anglais (how does one translate this “dois” this duty? 1 must? I should, I ought to, Ihave to?) because one has made this for me a sort of obliga- tion or condition by a sort of symbolic force or law {loi ina situation do not control. A sort of pélemios already concerns the appropriation of language: if, at least, want to make myself heard and understood, it is necessary [faut] that I speak your languages je le dois,Thave to do it. T must speak you language because what I shall say will thus be more juste, or will be judged moe just and be more justly appreciated, that isto say, this time, juste in the sense of justesse, in the sense of an adequation between what is and ‘what is said or thought, between what is said and what is understood, indeed between what is thought and said or heard and understood by the mejority of those who are here and who manifestly make the law [loi].“Faire I loi” (making the law”) is an interesting expression about which we shall have to speak again 3, Irmust speak in a language that is not my own because it will be more just in another sense of the word juste, in the sense of justice, a sense which, without thinking about ittoo much for now, one could call juridico-etico-politieat: itis ‘more just to speak the language of the majority; especially whea, through hospi- tality, it grants speech to the stranger or foreigner. We ae referring heré to alaw (loi) of which itis hard to say whether itis a rule of decorum, politeness, the law ‘of the strongest [la loi du plus fort], or the equitable law (oi] of democracy. And ‘whether it depends on justice of on lave. Stl in order for me to bend to this law [lei] and accept it,a certain number of conditions are necessary: for example, I must respond to an invitation and manifest my desire to speak here, something that no one apparently has constrained me todos then, I must be capable, up to ‘certain point, of understanding the contract and the conditions of the law [loi—that sto say of at east minimally appropriating to myself your language, “which then cesses, a east to this extent, to be foreign to me, It must be the case {il faut that you and T understand, in more o less the same fashion, the transla- tion of my tex, intially written in French this translation, however excellent it ‘may be,! necessarily remains a translation—thatis to say an always possible but always imperfect compromise between two idioms. 2 3, Tarslaorh wo: tn the previous English verion, Deda here hunks the transats, Mary Qusiatnee, FORCE OF LAW 235 ‘This question of language and ictiom will doubtless be at the heart of what I propose for discussion tonight. ‘There are a certain number of idiomatic expressions in your language that have always appeared precious to me as they have no striet equivalent in French. I will cite at least two of them, even before I begin. They are not unrelated to what 1 ‘would like to try to say tonight. ‘A. The first is “to enforce the law" or “the enforceability of the Jaw or contract” When one translates “to enforce the law” into French,—as by appliquer la li, for example—one loses this direct or literal allusion to the force that comes from within to remind us that law is always an authorized force, a force that justifies itself or is justified in applying itself, even if this justification may be judged from else- where to be unjust or unjustifiable. No law without force, as Immanuel Kant recalled with the greatest rigor. Applicability, “enforceability” is not an exterior or secondary possibilty that may or may not be added as a supplement to law. Itis the force essentially implied in the very concept of justice as la of justice a it becomes Jays of the law as law [de la foi en tant que droit). want to insist at once to reserve the possibility ofa justice, indeed ofa law [oi] that not only exceeds or contradicts law but also, perhaps, has no relation to law, or ‘maintains such a strange relation to it that may just a well demand law as exclude it. ‘The word “enforceability” recalls us therefore to the letter. literally reminds ws that there is no law that does not imply in itself prior, inthe anclytic structure of its concept, the possibility of being “enforced,” applied by force. Kant recalls this 2s carly asthe Introduction to the Theory of Right (paragraphvE, which concerns law “nts strict sense, das strete Rech”) There ae, to be sure, laws [ois] that are not enforced, but there is no law (loi) without enforceability and no applicability ot enforceability of the la {lol without force, whether this force Be director indirect, physical or symbolic exterior or interior, brutal or subtly discursive—even herme- neutic—coercive or regulative, and so forth, How to distinguish between this force of the law [loi], this “force of law Lforce de UofT” as one says in English as well s in French, believe, and the violence that one always judges unjust? What difference is there between, om the one hart, the force “4. This exerinity diinguishes right from morality but ti inuficent to found or jug. "Thie right ie cenninly based on each individu arenes of hit ebigaons wich Ue la: bu If isto ‘ein pre tmay not and cannot sppel to ths arenes sa mive which might determine the wil to ac in accordance with and it tereore depends eather on the principle ofthe posblity of an ‘external coercion which can coexit wit the redom of everyone in accordance with universal lv” {Gramantel Kant, "“atrodaction to the Theory of Right tans. HL B. Niet, in Poineal Writings [Cambrige: Cambrige University Pres, 1991] 14),On this point [allow mel refer the ear to uci la philosophic (Paris: Gall, 1990), 77H. 24 ACTS OF RELIGION that can be just, or in any case judged legitimate (not only an instrument in the service of law but the practice and even the fulllment, the essence of law), and, on ‘the other hand, the violence that one always judges unjust? What i a just force ora nonviolent force? In order not to leave the question of idiom, 1 will refer here to a German word that will soon be occupying much of our attention: Gewalt In English, as in French, itis often translated as “violence.” The text by Wate: Benjamin that I will ‘be speaking about soon is entitled “Zur Kritik der Gewalt” translated in Trench as Pour une critique de la violence” and in English as “Critique of Violence” But these two translations, while not altogether unjust, and so not entirely violent, are very active interptetations that do not do justice to the fact that Gewalt als signi- fies, for Germans, legitimate power, authority, public force. Gesetzgebende Gewalt is lepslative power, geistliche Gewalt the spiritual gower of the church, Staasge- ‘walt the authority or power of the state. Gewal, then, is both violence and legit mate power, justified authority. How to distinguish between the force of law [Ji] of a legitimate power and the allegedly originary violence that mst have established this authority and that could not itself have authorized itself by any anterior legit- imacy, so that, in this inital moment, it is neither legal nor illegal—as others would quickly say, neither just nor unjust? The words Walten and Gewalt play & decisive role in afew texts by Martin Heidegger—where one cannot simply trans- late them as either force or violence—end in a context where Heidegger will ty t0 show that, for Heraclitus, for exarmple, Dike, justice, right, ral penalty or punish ‘ment, vengeance, and so forth) —is eris (conflict, Streit, discord, plemas or Kampf) thats, itis adikia injustice, as well ‘Since this colloquium is devoted to deconstruction and the possibility of justice, recall frst tat in the many texts said to be “deconstructive” and particularly in some of those that I have published myself, recourse to the word “force” is both very frequent and, in strategic places, I would even say decisive, but atthe same time always or almost always accompanied by an explicit reserve, a warning (mise en garde), I have often called for vigilance, I have recalled myself to it to the tisks ptead by this word, whether it be the risk of an obscure, substantialist, occulto- yystic concept or the risk of giving authorization to violent, unjust arbitrary force. (C will not cite these texts—it would be self-indulgent and it would waste time— ‘but Task you to trust me.) A first precaution against the risks of substantilisma or ineationalism isto recall the differential character of force, Inthe texts just evoked, itis always a matter of differential force of difference as difference of force, of force 2 Cl “Teideggers Bac; Phiopolemology (Gaclect TV) in Reading Heiderse @, John Salis (Gloomington: Indiana University Press, 1992) FORCE OF LAW 2 as differance or force of differance (differance is a force diffrée-diférante) it always a matter of the relation between force and form, between force and signi cation, of “performative” force illocutionary or perlocutionary force, of persuasiv force and of rhetoric, of affirmation of signature, but also and above all, of all tb paradoxical situations in which the greatest force and the greatest. weakne steangely exchange places (échangentétrangement]. And thet is the whole stor the whole of history. What remains is that I have always been uncomfortable wit, the word force even if I have often judged it indispensable—and so I thank you fe thus pressing me to try and say a litte more about it today. Indeed, the same thin goes for justice. There are no doubt many reasons why the majority of texts hasti identified as “deconstructionist” sem—I do say seem—not to foreground th theme of justice (as theme, precisely), nor even the theme of ethics or politic Naturally this is only apparently so if one considers, for example, (I will only met tion these) the many texts devoted to Levinas and to the relations between “vic lence and metaphysics” or to the philosophy of right, that of Hegel's, with all posterity in Glas,of which itis the principal motif, or the texts devoted to the driv for power and to the paradoxes of power in “To Spetulate—on Fred,” to the lav (loi), in “Before the Law” (on Kafha’s Vor dem Gesetz) or in “Declarations « Independence,” in “The Laws of Reflection: Nelson Mandela, In Admiration,” an in many other texts. It goes without saying that discourses on double affirmatior the gift beyond exchange and distribution, the undecidable, the incommensurabl or the incaleulable, on singularity, difference and heterogeneity are also, throug, and through, at least oblique discourses on justice. Besides, i was normal, foreseeable, and desirable that studies of deconstructiv style should culminate in the problematic of right, of law [loi] and justice. Suc ‘would even be the most proper place for them, if such a thing existed: « decon structive questioning that stats, as has been the case, by destabilizing or complica ing the opposition between nomos and physis, between thesis and physis—that is t say, the opposition between law [lo], convention, the institution on the one hanc and nature on the other, with all the oppositions that they condition. An exam ple—and this is only an examiple—is that between positive law and natural lav (diffrance is the displacement of this oppositional logic). It is a deconstructiv questioning that starte—as has been the case—by destabilizing, complicating, o recaling the paradoxes of vahie like those ofthe proper and of property inal thei registers, ofthe subject, and thus ofthe responsible subject ofthe subject of right the subject of law, and the subject of morality, ofthe juridical or moral person, 0 intentionality and so forth, and of all that follows from these: Such a deconstruc tive questioning is through and through a questioning of law ard justice, a ques tioning ofthe foundations of lav, morality, and politics. 26 ACTS OF RELIGION “This questioning of foundations is neither foundationalist nor antifoundation- alist, Sometimes it even questions, or exceeds the very possibility, the ultimate necessity, of questioning itself, of the questioning form of thought, interrogating without confidence or prejudice the very history ofthe question and ofits philo- sophical authority. For there is an authority —and so legitimate force of the ques- tioning form of which one might ask oneself whence it derives such great force in our tradition. If hypothetically ithad a proper place, wich precisely cannot be the case, such a deconstructive questioning or metaquestioning would be more “at home” (“chez ui] in law schools, perhaps also, as it does happen, in theology or architecture departments than in philosophy and literature departments, ‘That is why, without knowing them well from the inside, for which T eel guily, without pretending to any familiarity with them, I judge that developments in “critical legal studies” or in ‘such works as those of Stanley Fish, Barbara Herzstein-Smith, Drucilla Cornell, Sam Weber, and others, located at the articulation between literature, philosophy, law and politico-institutional problems, are, today from the point of view of a certain deconstruction, among the most fertile and the most necessary. They respond, it seems fo me, to the most radical programs of a deconstruction that would ike in order to be consistent with itself, not to remain enclosed in purely speculative, theo retical academic discourses but rather—contrary to what Stanley Fish suggests—t0 spite t9 something more consequential, to change things and to intervene in an efficient and responsible (though always, of couse, in a mediated way), not only in the profession but in what one calls the city, the palis and more generally the world [Not to change things in the no doubt rather naive sense of calulated, deliberate and strategically controlled intervention, but in the sense of maximum intensification of a transformation in progress, in the name of neither a simple symptom nora simple cause; other categories are required here. In an industrial and hypertechnologized society, academic space is less than ever the monadie ot monastic ivory tower that in any case it never was. And thisis particularly true of law schools, {hasten to add here three very brief points: 1. ‘This conjunction or conjuncture is no doubt inevitable between, on the one yhand, a deconstruction of a style more directly philosophical or motivated by literary theory and, om the other hand, juridicoliterary reflection and critical legl studies. 2, Ie is certainly not by chance that this conjunction has developed in such an interesting way in this country. This is another problem—argent and com= ppelling—that I must leave aside for lack of time. There are no doubt profound ‘and complicated reasons of global dimensions—I mean geopolitical and not FORCE OF LAW 27 merely domestic—for the fact that this development should be frst and fore- ‘most North American, 5. Above all, if it seems urgent to pay attention to this joint or concurrent develop- ‘ment and to participate init itis just as vital that we do not confound largely het- cerogeneous and unequal discourses, styles, and discursive contexts. The word deconstruction could in certain. cases induce or encourage such confusion. The ‘word itself gives rise to enough misunderstandings that one would not want to add to them by reducing —betwoen themselves, fist of all—the styles of critical legal studies, or by making them examples or extensions of Deconstruction with a capital D. However unfamiliar they may be to me, I know that these works in Critical Legal Studies have their ow history, context, and idiom; that in relation to uch aphilosophico-deconstructive questioning they ae often (we shal say fot the sake of brevity) uneven, timid, approximating or schematic, not to mention ‘elated, whereas ther specialization and the acuity oftheir technical competence puts them, on the other hand, very much in advance of whatever state decon struction finds itself in a more literary or philosophical field, Respect for contex- tual, academico-institutional, discursive specificities, and mistrust for analogies and hasty transpositions, for confused! homogenizations, seem to me to be the first imperative in the current state of things. Lam convinced, [ hope in any case, that this encounter will eave us with the memory of differences and diffrends at least as much it leaves us with encounters, with coincidences or consensus. ‘Thus, it only appears that deconstruction, in its best-known manifestations ‘under that name, has not “addressed,” as one says in English, the problem of justice. Itonly appears that way, but one must account for appearances, “keep up appeat- ances" in the sense Aristotle gave to this necessity. That is how I would like to ‘employ myself here: to show why and how what one currently calls deconstruction, ‘while seeming not to “address” the problem of justice, has done nothing else while tunable to do so dizectly but only in an oblique fashion. I say obligue, since at this very moment I am preparing to demonstrate that one cannot speak directly about justice, thematize or objectivize justice, say “tis is just,” and even less “I am just” ‘without immediately betraying justice if not law.6 B. Ihave not yet begun. I believed that I ought [jevais oru devoir] to start by say- ing that 1 must (i! me faut bien] address myself to you in your language; and I announced at once that I have always judged very precious, even icreplaceable, at least two of your idiomatic expressions. One was to enforce the law." which always On esq ae my Daca a php p71 08*aons: An Obie fing io On the Name, trans. David Wood (Stanford: Stanford University Press, 1995). aa i! a8 ACTS OF RELIGION seminds us that if justice is not necessarily law or the law {Ue dit ov Ua lof} it cam- not become justice legitimately or de jure [de drois ou en droit) except by holding {détenir] force or rather by appealing to force ftom its first moment, From its first ‘word. At the beginning of justice there will have beet logos, speech or language, but this is not necessarily in contradiction with another incipit, which would say, “In the beginning there will have been force” What must be thought, therefor, is this exercise of force in language itself, in the most intimate of its essence, a8 in the ‘movement by which it would absolutely disarm itself from itselé Blaise Pascal says so in a fragment I may return to later, one of his famous “pen- sées? which is always more difficult than it seems. “Justice, force —Il est juste que ce qui est juste soit suis i est noessaire que ce qui est le plus fort soit suivi. Justice, Force is right that wihat is just should be followed: itis necessary that what is strongest should be followed)” ‘The beginning of this fragment is already extraordinary, atleast in the rigor of its thetoric. It says that wht is jst must [doit] —and it i just—be followed: fol- lowed by consequence, followed by effect, applied, enforced and then that what is “strongest” must also be followed: by consequence, effect, and so on. In other ‘words, the common axiom is that the jst and the strongest the most just as of as, ‘well a the strongest, mustbe followed, But this “must be Followed,” common to the just and the strongest, is “just” in one case, “necessary” inthe other: “It is just that ‘what is jast be followed [in other words, the concept or idea of the justin the sense of justice, implies analytically and a prior thatthe just be “followed” enforced? and its just—also in the sense of justesse—to think this way —J-D.], i is necessary that what is strongest be followed (enforced).” Pascal continues, “La justice sans la force est impuissante [Justice without force is ed if it docs not hhave the force to be “enforced”: a powerless justice is not justice, in the sense of law —J. Dla force sans la justice est tyzannique, La justice sans force est contrite, parce quily a toujours des méchantsla force sans la justice est accusée, faut donc ‘mettre ensemble la justice et la force; et pour cela faire que ce qui es juste soit for Cou que ce qui est fort soit juste (force without justice is tyrannical, Justice without force is yeinsaid, because there are always offenders; force without justice is con- demned. It is necessary then to combine justice and force; and for this end make powerless—in other words, justice is not justice, it is not 2 ‘what is just strong, or what is strong just].” 7, ane Pasa Ponds of opuicules, ed Lom Branevieg (Pari: Hachette, 1961, fing. 298,470 blae Poca Thoughts trans W.E Thoter (New Yor Collies, 1910), 107. Translator’ note: Ihave ‘tered the Pnglsh trenton to remain closes to Derr’ phrasing. 1. Translators note: The wore exer kn Bogish inthe text. 9. Trwsieors note The word enfradis in English nthe tet FORCE OF LAW 239 Tis difficult to decide or conclude whether the “itis necessary [i faut)” in this conclusion (‘And so itis necessary to put justice and force together”) is an “it is necessary” prescribed by what i justin justice or by what is necessary in force, One could also consider thishesitation secondary. Ie hovers above the susface of an “i necessary” that is deeper, if one could say so, since justice demands, a8 justice, recourse to force, The necessity of force is implied, then, in the juste of justice. ‘What follows and concludes this pensée is known: “Et ainsi ne pouvant faire que ce qui est just Fit fort, om a fait que ce qui est fort fit juste [And thus being unable to make whatis just strong, we have made what is strong just,” The principle of the analysis or rather ofthe (active and anything but nonviolent) interpretation that T swill indirectly propose in the course of this lecture, would run, I am convinced, counter to tradition and to its most obvious context. This dominant context end the conventional interpretation that it seems to govetn goes, precisely, in a conven- tionalist direction, toward the sort of pessimistic, relativistic and empiricist skepti- cism that drove Arnaud to suppress these pensées in the Port Royal edition, alleging ‘that Pascal wrote them under the impression of a reading of Montaigne, according ‘to whom laws [Jis) are not in themselves just but are rather just only because they are laws. Itis true that Montaigne used an interesting expression, which Pascal takes up for his own purposes and which T would also like to reinterpret and retrieve from its most conventional and most conventionalist reading, The expres- sion is“mystical foundation of authority (fondement mystique de autorité.” Pascal cites Montaigne without naming him when he writes, in pensée 293, Tun dit que Yressence de la justice est Pautorité du lépislatear, Pautre la commodité du sou- verain, Pautre la coutume présente; et Cest le plus str fest juste de soi; tout branle avec le temps. La coutume fat toute 'équité par cette seule raison quelle est regue; est le fondement mystique de son autorité, Qui la raméne a son principe, Panéantit fone affirms the essence of justice to be the authority ofthe legislator; another the interest of the sovereigns another, present custom, and this is the most sure, Nothing according to reason alone, is just in itself all changes with time. Custom creates the whole of equity, forthe simple rea- son that tis accepted. Itis the mystical foundation of its authority. Whoever carties i back to frst principles destroys it] °° “Montaigne was in fact speaking, these are his words, of a “mystical foundation” of the authority of laws, “Or ls loix se maintiennent en credit, non parce qu'elles sont justes, mais parce quélles sont loix: cest le fondement mystique de leur Quiconque leur obeyt parce qu'elles sont justes, ne leur obeyt pas justement par ot il doibt [Lawes are now maintained » suivant la seule raison, authorité elles n'en ont poinct autre 10, Basel, Peres, no, 238, 467/ Thoughts, 14s emphasis added, 240 ACTS OF RELIGION in credit, not because they are just, but because they arc lawes. Iti the mystical foundation of their authority; they have none other... Whosoever obsyeth them Decause they ae just, obeyes them not justly the way as he ought)."" Clearly Montaigne is here distinguishing laws (lois), that is to say law (droit) from justice. The justice of lav, justice a lay is not justice. Laws are not just in as riuch as they are laws. Qne does not obey them because they are just but because they have authority. The word credit caries all the weight ofthe proposition and justifies the allusion to the mystical character of authority. The authority of laws rests only on the credit that is granted them. One believes in its that is their only foundation. This act of faith is not an ontological or rational foundation, Still one has yet to think what believing means [encore faut-il penser ce que crore veut dire]. Littl by ltde what willbe clarified —if t is possible and if itis a matter here of a value of clarity —is what one can understand by this expression “mystical founda~ tion of authority” It is true that Montaigne also wrote the following, which must, again, be interpreted by going beyond its simply conventional and conventionaist surface: “nostre droict mesme 2, dict-on, des fictions legitimes sur lesquelles il fonde la vérité de sa justice [and our law hath, as some sty, certaine lawful fictions, ‘on which it groundeth the trath of justice)” What is legitimate fiction? What does it mean to found the truth of justice? These are among the questions that awai ‘Montaigne proposed an analogy between this supplement of a legitimate fiction, ‘that is the tion necessary to found the trath of justice, and the supplement of artifice called for by a deficiency in nature, as ifthe absence of natural law called for the supplement of historical o positive (that is to say, an addition of fictional law just as—and that isthe proximity [rapprochement] proposed by Montaigne—"les femmes employent des dents d'yoire oi les leurs naturelles leur manquent, et, au liew de leur vray teint, en forgent un de quelque matiere estrangere ... s'embellis- sent d'une beauté fauce et empruntée: ainsi faictla science (et nostre droict mesme, a dict-on, des fictions legitimes sur lesquelles il fonde la verté de s justice) [Even as women, when theic natuall teeth fale them, use some of yvorie, and in stead of a true beautie, of lively colout; lay-on artifciall hew ... embellish themaselves with counterfeit and borrowed beauties; 90 doth learning (and our Jaw hath, as some say, certaine lawfull fictions, on which it groundeth the truth of justice)]:"” “The Pascal pensée that “puts together” justice and force and makes force an ‘essential predicate of justice —by which he means droit more than justice—perhaps ‘goes beyond a conventionalistor utilitarian relativism, beyond « nihilism, ancient 1 Montaigne, Eoais3 ch 13,°De Fexpience” (Pari Bibliothique dels Pliade, 1962), 1203/The ssayesof Moexign rans John Florio (New York: Medera Library, 1933), 970, 12, Basch 12,p 601/835 482. FORCE OF LAW an ‘or modern, that would make the law [Joi] what one sometimes calls a “masked power” beyond the cynical moral of La Fontaine's “The Wolf and the Sheep,” according to which “La raison du plus fort est toujours la meilleure The reason of the strongest is always the best—i.e,, might makes right)” In its principle, the Pascalian critique refers back to original sin and to the cor ruption of natural laws [ois] by a reason that i itself corrupt “Ilya sans doute des lois naturelles; mais cette belle raison a tout corrompu {Doubtless there are natural laws; but good reason has corrupted all]?! And elsewhere, ‘notte justice (s'anéan- tit] devant la justice divine [our justice (is annihilated) before divine justice)" "These pensées prepare us forthe reading of Benjamin, But if one sets aside the functional mechanism of the Pascalian critique, if one dissociates this simple analysis from the presupposition of its Christian pessimism (omething that is not impossible to do). then one can find init as in Montaigne, the premises of a modern critical philosophy, even a critique of juridical ideology, desedimentation of the superstructures of law that both hide and reflect the eco- nomic and political interests of the dominant forces of society. This would abvays ‘be possible and sometimes use. But beyond its principle and its mechanism, this Pascalian pensée concerns per- trinsic structure. A critique of juridical ideology should never neg- lect this structure, The very emergence of justice and la the instituting, founding, and justifying, moment of law implies a performative force, that isto say always an interpretative force and a cal o faith (un appel 4 la croyance]: notin the sense, this, time, that lve would be in the service of force its docile instrument, servile and thus exterior to the dominant power, but rather in the sense of law that would maintain, a more internal, mote complex relation to what one calls force, power of violence. Justice—in the sense of droit (right oF law)" would not simply be put in the serv- ice of a social force or power, for example an economic, political, ideological power that wotild exist outside or before it and that it would have to accommodate or bend to when useful, Its very moment of foundation or institution, besides, is never a moment inseribed in the homogeneous fabric [tissu] of a story or history, since it rips it apart with one decision Yt, the operation that amounts to founding, inaugurating, justifying lav, to making lav, would consist of a coup de fore, of & performative and therefore interpretative violence that in itself is neither just nor unjust and that no justice and no earlier and previously founding law, no precxist- ing foundation, could, by definition, guarantee or contradict or invalidate. No hhaps-a more i 13 Pee 00.294, 46512 11 1. Peds no. 283,438/Thoughns 80. 15. ilar note"rght o las ia Engh nthe text. 24a ACTS OF RELIGION justificatory discourse could or should ensure the role of metalanguage in relation to the performativity of institutive language orto its dominant interpretation, Discourse here mests its limit—in itself, in its very performative power. It ‘What I propose to call here the mystical There is here silence walled up in the vio- Jent structure ofthe founding act; walled up, walled in because this slence is not ‘exterior to language. Here is the sense in which I would be tempted to interpret, beyond simple commentary, what Montaigne and Pascal call the mystical founda sion of authority. One will always be able to return upon—or turn against—what 1 am doing or saying hie, the very thing that I am saying is done or occu [cela réme que je dis qui se fit) at the origin of every institution. 1 would therefore take the use of the word mystical in a sense that 1 would venture to call rather ‘Wittgensteinian, ‘These texts by Montaigne and Pascal, along with the tradition to which they belong, like the rather active interpretation of them that I propose, could be invited to a discussion with Stanley Fish in “Force” about H. L. A. Hart's Concept of Law, and several others, implicitly including John Rawls, himself criti- ccized by Hart, as well as to many debates illuminated by some texts of Sam Weber (on the agnostic and not simply intra-instiutional or mono-institutional character of certain conflicts in institution and Interpretation.* Since the origin of authority the founding or grounding (Ja fondation ou le {fordement), the posting ofthe law [Joi] cannot by definition rest om anything but themselves, they are themselves a violence without grotnd {sans fondement). This is not to say that they ate in themselves unjust, i the sense of “egal” o “ileitimate” ‘They are neither legal nor illegal in their founding moment, They exceed the oppo- sition between founded and unfounded, or between any foundationalism or anti- foundationalise, Even ifthe success of performatives that found a law (for example, and this is more than an example, ofa state as guarantor ofa law) presupposes ear- lier conditions and conventions (for example, in the national and international arena) the same “maytical” limit wll reemerge at the supposed origin of said condi- tions, rules or conventions, and atthe origin of their dominant interpretation In the structure I am here describing here, law is essentially deconstructble, ‘whether because itis founded, that is to say constructed, upon interpretable and transformable textual strata (and that is the history of lave, its possible and neces- sary transformation, sometimes its amelioration) or because its ultimate founda- tion is by definition unfounded, The fact that law is deconstructible is not bad news. One may even find in this the political chance of all historical progress. But 16, Sanuel Weber, Futiuion and Interpretation (Minneaplis: Unversity of Minnesota Press, 1987) Trost note: The references are to Stanley sh, Doing What Cons Natural: Change, Rhetoric land he Pace of They in Literary and Legal Sue (Dust, NC Duke Univesity Press, 1989 ‘whlch sh engages HLA Hat, The Concept of Law (Oxford: Clrendon, 2951. FORCE OF LAW 28 the paradox that { would like to submit for discussion is the following: it is this deconstructible structure of law or, if you prefer, of justice as lw, tht also ensues the possibility of deconstruction, Justice in itself, if such a thing exist outside or beyond lav, is not deconstructible. No more than deconstruction itself if such a thing exist. Deconstruction is justice, It is perhaps because lew (which { will there- fore consistently try to distinguish from justice) is constructible, in a sense that goes beyond the opposition between convention and nature its perhaps insofar as “Fe goes beyond this opposition that itis constructible—and so deconstructible and, ‘etter yet, chat it makes deconstruction possible, or at least the exercise of « decon- struction that, fundamentally, always proceeds to questions of Iaw and to the sub- ject of law. Whence these three propositions: 1, The deconstructbility of law (for example) makes deconstruction possible. 2. The undeconstructiility of justice also makes deconstruction possible, indeed is inseparable from [se confond avec] it 3. Consequence: Deconstruction takes place in the interval that separates the unde- constructibility of justice from the deconstractibility of law, Deconstruction is possible as an experience ofthe impossible, there where, even if it does not exist, ifitis not present, not yet or neve, there isjustice [ily @ la justice]. Wherever one can replace, translate, determine the X of justice, one would have to say: decon- struction is possible, a impossible, to the extent (there) where there isX (unde- constructible), thus to the extent (there) where ther is (the undeconstructible), In other words, the hypothesis and propositions toward which T am tentatively moving here would rather call for the subtitle: justice as the possibility of decon- struction, the structure of right or of the law [la structure du droit ow de la Toi, the founding or the self-authorizing of law as the possibilty ofthe exercise of decon struction, fam sure this is not altogether clea. hope, without being sure of it, that i will become alittle clearer in @ moment have said then, that I have not yet begun, Perhaps Iwill never begin and per- hhaps this colloquium will have to do without a “keynote.” Yet [have already begun. T authorize myself—but by what right?—to multiply protocols and detours. 1 ‘began by saying that I was in love with atleast two of your idioms, One was the word enforceability, the other was the transitive use of the verb fo address. In French, one addresses oneself to someone, onc addresses a letter or a word, aso tansitive use, without being sure that they will arrive at their destination; but one does not address a problem. Even less docs one address someone, Tonight, I have agreed by contract to “address,” in English, a problem, that is to say, to go straight toward it and straight toward you, thematically and without detous in addressing _myselfto you in your language. In between the law or right droit] the rectitude of as ACTS OF RELIGION address, direction and straightforwardness [drvisure}, one should find a direct line cof communication and find oneself on the right track. Why does deconstruction have the reputation, justified or not, of treating things obliquely, indiecty, in indi- rect style, with s0 many “quotation marks,” and while always asking whether things anzive at the indicated address? Is this reputation deserved? And, deserved or not, how does one explain it? ‘And so we have already, in the fact that I speak the language of the other and break with ming in the fact that I give myself up to the other, a singular mixture of force, justese and justice. And I must, it is a duty, “address” in English, as you sayin your language, infinite problems, infinite in their number, infinite in their history, infinite in their structure, covered by the title Deconstruction and the Possibility of Justice, But we already know that these problems are not infinite simply became they are infinitely numerous, nor because they are rooted in the infinity of memories and cultures (celigious, philosophical, juridical, and so forth) that we shall never master, “They are infinite, if one may say so, in themselves, because they require the very ‘experience of the aporia that is not unrelated to what we just called the mystica ‘By saying that they even require the experience of aporia, one can understand two things that are already quite complicated: 1, Asits name indicates, an experiences a traversal, something that traverses and tuavels toward a destination for whieh it finds a passage. The experience finds its "way its passage itis possible. Yet, in this sense there cannot be a full experience ‘of aporia, that is of something that does not allow passage. Aporiais a nonpath. From this point of view, justice would be the experience of what we are unable to experience. We shall soon encounter more than one aporia that we shall not ‘beable to pass. 2, But believe that there is no justice without this experience, however impossible it may be, of aporia. Justice is an experience of the impossible: a will 2 deste, a demand for justice the structure of which would not be an experience of aporia, ‘would have no chance to be what it is—namely, a just cal fr justice, Every time that something comes to pass or turns out well, every time that we placidly apply ‘good rule to a particular case, toa correctly subsumed example, according to a determinant judgment, law perhaps and sometimes finds itself accounted for, but one can be sure that justice does not, Law is not justice. Law is the element of calculation, and itis just that there be law; bul justice is incalculable, it demands that one calculate with the incalculable; and aporetic experiences are the experiences, as improbable as they ere necessary, of justice, that isto say of moments in which the decision between just and unjust is never insured by a rule. FORCE OF LAW 2s ‘And so I must address myself to you and “address” problems; Tmust do it briefly and ip «foreign language. To doit briefly, ought to do it as directly as possible, {going straight ahead, without detour, without historical alibi, without oblique pro- ceeding {démarche oblique), on the onc hand toward you, supposedly the primary addressees ofthis discourse, but atthe same time and on the other hand toward the essential place of decision for sad problems. Address, lke direction, lke rectitude, says something about law [droit] and about what one must not miss when one ‘wants justice, when one wants to bejust—itis the rectitude of address. ne ft pas ‘mangue’ d’adresse, one must not lack address or skill, one might say in French, but, above all, ile faut pas manquer Vadresse, one must not miss the adress, one must not mistake the address. But the address always turns out to be singular. An address is always singular, idiomatic, and justice, a law, seems always to suppose the gen cerality of a rule, a norm oF a universal imperative. How to reconcile the act of justice that must always concern singularity, individuals, groups, ireplaceable existences, the other or myself as other, in @ unique situation, with rule, norm, value, or the imperative of justice that necessarily have a general form, even if this generality prescribes a singular application in each case? If I were content to apply a just rule, without a spirit of justice and without in some way and each time inventing the rule and the example, I might be sheltered from criticism, under the protection of law, my action conforming to objective law, but I would not be just ‘would act, Kant would say, ft conformity with duty but not through duty or out of respect for the law (le). Is it ever possible to say that an action is not only legal, ‘but just? A person is not only within his rights [dans son droit] but within justice? “That such a person is ust, a decision is just? Is it ever possible to say, "I know that 1 am just"? I would went to show that such confidence is essentially impossible, other than in the figure of good conscience and mystifcation. But allow me yet another detour. ‘Toaddeess oneself to the other in the language of the other is both the condition of all possible justice, it seems, but,in all rigos, it appears not only impossible (since 1 cannot speak the language of the other except to the extent that 1 appropriate it and assimilate it according to the law (loi) of an implicit thd) but even ex- cluded by justice as law, inasmuch as justice as law seems to imply an element of “universality the appeal toa third party who suspends the unlaterality or singulay ity ofthe idioms ‘When Tadaress myself to someone in English it is always. test and an ordeal for me and for my addzessee, for you as well I imagine, Rather than explain to you why and lose time in doing so, I begin in medias res, with several remarks that for me te the anguishing gravity of this problem of language to the question of justice, of the possibility of justice 246 ACTS OF RELIGION (On the one hand, for fundamental reasons it seems tous just to rendre la justice, asone sas in French, ina given idiom, ina language in which all the “subjects” con- cerned ate supposed competent, that isto say, capable of understanding and inter- preting: all the “subjects” so to say are those who establish the laws {Joi those who judge and those who ate judged, witnesses in both the broad and natrow sense—all ‘hose who are guarantors of the exercise of justice, ot rather of law. Its unjust to judge someone who does not understand his rights, nor the language in which the Jaw [li] is inscribed or the judgment pronounced, and so on. We could give mult ple dramatic examples of situations of violence in which a person or group of persons assumed to fall under the law [Joi] are judged in an idiom they do not understand, not very well or not at all, And however slight or subtle the difference of competence in the mastery of the idiom would be here, the violence of an injus- tice has begun when all the members {partenaires} of a comraunity do not shere, ‘through and through, the same idiom. Since in all rigor, this ideal situation is never possible, one can already draw some inferences about what the title of our confer- ence calls “the possibilty of justice” The violence of this injustice that consists of judging those who do not understand the idiom in which one claims, as one says in French, that “justice es faite (justice is done, made)” is not just any violence, any Injustice. This injustice, which supposes all the others, supposes thatthe other, the victim ofthe injustice of language if one may say so,is capable of alanguage in gen- ral, is man as a speaking animal, in the sense that we, men, give to this word “lan: guage.” Moreover, there was a time, not long ago and not yet over, in which “we, ‘men’ meant “we adult white male Europeans, crnivorous and capable of sacrifice” In the space in which T am situating these remarks or reconstituting this dis- course one would not speak of injustice or violence toward an animal, even less toward a vegetable or a stone. An animal can be made to suffer, but one would never say, in a sense said to be proper, that it is @ wronged subject, the victim of a crime, ofa murder, ofa rape or a theft, ofa perjury—and ths is true a fortor, one thinks, for what one calls vegetable or mineral or intermediate species like the sponge. There have been, there are still, many “subjects” among humankind who are not recognized as subjects and who receive this anitnal treatment (this is the ‘whole unfinished story and history I briefly alluded to a moment ago). What one or the sake of couvenience, let us continue to translate Gevalt as violence)” but I have already mentioned the precautions this calls for. Gewalt Trl ochematian Bere a theme largely developed csowhere. CE for example: “the most rigorous deconsicuction bes newer claimed tobe posible, And | would say tht deconstruction lores nothing {four adalttng tat tis possible. Fora deconreutive operation posiilty would rater be the ddangen the danger of becoming an walable act of cule-governed procedures methods, accessible “Ppvoeches The ners of deconscucion, of sch ferce and desire a it may have, 3 certain exper- creeGf the imponibe: at ofthe oher—the experience ofthe other asthe invention ofthe {faporbi, inthe words, as the only possible invention’ "Psyche Invention ofthe Othe trans ‘Calerine Dots in Reading de Man Reading Msoeapois Onivesty of Minnesota Pres, 1989) 36 25, Toler note: Jepcot’tanltion weer here o"Tow-naking violence. 28. Trad’ note Jeph "Law- preserving” violence. 30. Talat’ ate Jeph" FORCE OF LAW 265 can also mean the dominance or the sovereignty of legal power, the authorizing or authorized authority: the force of law (Joi) 2, Next there isthe distinction between the founding violence that makes law—it is named “mythic” (implicit meaning: Greek, it seems to me)—and the destruc tive violence that annihilates law (Rechtsvernichtend®)—named “divine” (im- plicit meaning: Jewish, it seems to me). 3. Finally, there isthe distinction between justice (Gerechtigheit) asthe principle of all divine positing ofthe end (das Prinzip aller goilicher Zwecksetoung) and power (Macht) as principle of mythical posing of law (aller my thischon Rechtsetung) * Inthe title “Critique of Violence,” critique does not simply mean negative evalua tion, legitimate rejection or condemnation of violence, but judgment, evaluation, examination that provides itself with the means to judge violence. The concept of, critique, insofar as it implies decision in the form of judgment and question with regard to the right to judge, thus has an essential relation, in itself, to the sphere of Jaw. Fundamentally, this is something like the Kantian tradition of the concept of ctitique. The concept of violence (Gewalt) permits an evaluative critique only in the sphere of law and justice (Recht, Gerechtgheit) or the sphere of moral relations (si sliche Verhilinise) ° There i no natural or physical violence, One can speak figara- tively of violence with regard to an earthquake or even to a physical ailment, But one knows that these are not cases of a Gewalt able to give rise to a judgment, before some instrument of justice. The concept of violence belongs to the symbolic order of law, politics and morals—of all forms of authority and of authorization, of claim to authority, at last. And its only to this extent that it can give rise toa critique. Up to this point this critique was always inscribed in the space of the distinction between means and end. But, objects Benjamin, to ask oneself if violence can be a ‘means with a view toward ends (just or unjust is to prohibit oneself from judging violence ite The criteriology would then concern only the application of violence, ot violence itself One would not be able to tell ifthe later, s means, isin iselfjust ‘or not, moral or not. The critical question remains open—the question of an evalu ation and a justification of violence in itself, whether itbe a simple means and what- ever its end may be. This critical dimension would have been foreclosed by the Jusnaturalist tradition, For defenders of natural aw recourse to violence poses no problems, since natural ends are just. Recourse to violence is as justified, 2s normal a5 man’s “right” to move his body to reach a given goal. Violence (Gewali is from cesoyng vile. 31am pest Tosi the pina ol vn end ang power the prince all mythical lawmaking” (£285). feces BE har te epee ic (277, 26 ACTS OF RELIGION this point of view a “natural product [Naturproduke]” (180/6278). Benjamin gives several examples ofthis naturalization of violence by jusnaturaisn: 1. The state founded on naturel law, which Spinoza talks about in the Theologica ‘Political Treatise in which the citizen, before « contract is formed by reason, exercises de jurea violence he disposes of de facto. 2, The ideological foundation of the Terror under the French Revolution, and 3, The exploitetions of a certain Darwinism, and S0 on. tif at the opposite end from jusnaturalism, the tradition of postive lew is sna te ibe bre en fl a ls st of he ee {questioning called for by Benjamin, Doubtles it can only consider all means to be good once they conform to a naturel and ahistorical end, It prescribes that one judge means, that isto say judge their conformity to a Ja that sin the process of being instituted, toa new (consequently not natural) Lew that it evaluates in terms of means, It does not exclude, therefore, a critique of means. But the two traditions share the same dogmatic presupposition, namely, thet just ends can be attained by jst means: “Natural Jae attempts, by the justness ofthe ends (durch die Gerechtg- eit der Zwecke), to Sstify (rechertigen’) the means, positive law tox guarantee’ (garantieren’) the jastness of the ends through the justification (Gerechtigheit) of the means” (180/E278). The two traditions would turn in the same circle of dog- atic presuppositions, And there is no solution for the antinomy when a contra~ diction emerges between just ends and justified means. Positive law would remain blind tothe unconditionalty of ends, natural law to the conditionality of means. ‘Neverthiles, although he seems to dismiss both cases symmetrically, ftom the tradition of positive law Benjamin cetains the sense of the historicity of la. Inversely, itis true that what he says further on about divine justice isnot always incdmpatible ‘withthe theological basis ofall usnaturalisms. In any case, the Benjaminian critique of violence dams to exceed the two traditions and no longer to arise simply from the sphere of law and the internal interpretation of the juridical institution, It belongs to Wnt he calls in a rather singular sense a “philosophy of history” and is expressly lim ited, sit is by Schmitt aways, to the given of European la. "Atits most fundamental level, Buropean lew tends to probibit individual vioence ‘and to condemn it not because it poses a threat to this o that law {Joi} but because it threatens the juridical order itself (die Rechtsordnung):* Whence the law’ inter- cst for it does have an interest in laying itself down and preserving itself or in tep- resenting the interest that, justemen, it represents, To speak of laws interest may seein “surprising” (Benjamin's word), but at the same time it is normal, its in the nature of is own intrest, to pretend to exclude any individual violence threatening "= Toondator’s noe: leoheot: the lel stent” (280) FORCE OF LAW oe its order and thus to monopolize violence, in the sense of Gewal, which is albo to say authority. Law has an “interest in a monopoly of violence (Interesse des Rechts an der Monopolisierung der Gewalt)”(383/E281). This monopoly does not strive to protect any given just and legal ends (Rechtsewecke) but law itself ‘This seems like a teutological trivility. Yet is not tautology the phenomenal structure of a certain violence of the law that las itself down, by decteeing co be violent this time in the sense of outlaw {hors-la-li], anything that docs not recog nize it? Performative teutology or a priori synthesis, which structures any founding LJondation) ofthe law [Joi] upon which one performatively produces the conven- tions (or the “credit” of which we spoke earlier) that guarantee the validity of the performative, thanks to which one gives oneself the means to decide between legal and illegal violence. The expressions tautology, « priari synthesis, and especially the ‘word performative are not Benjaminian, but [dare believe that they do not betray his purposes. ‘The admiring fascination exerted on the people by “the igure of the ‘great criminal (die Gestalt des ‘grossen’ Verbrechers)”(185/82B1), can be explained as fol- lows: tis not someone who has committed this or that crime for which one feels a secret admiration; it is someone who, in defying the law (li), lays bare the violence ‘of the juridical order itself One could explain in the same way the fascination exerted in France by a lawyer lke Jacques Verges who defends the most unsustain- able causes by practicing what he calls the “strategy of rupture"—that is, the radi- cal contestation of the given order of the law [loi], of judicial authority and ultimately of the legitimate authority of the state that summons his clients to appear before the law {oi Judicial authority before which, in short, the accused appears without appearing lcomparait alors sans comparattre), appears only to tes- tity (without testifying) of his opposition to the law [oi] that summons him to appear. By the voice of his lawyer, the accused claims the right to contest the order of law—sometimes the identification of the victims. But what order of law? The order of law in general, or this order of law instituted and set to work (“enforced”) by the power ofthis state? Or order as inextricably mixed with the state in general? ‘The discriminating example here would be that of the right to strike, In class struggle, notes Benjamin, the right to strike is guaranteed to workers who are there- fore, besides the state, the only legal subject (Rechtssubjekt) to find itself guaranteed a tight to violence (Recht auf Gewalt) and so to share the monopoly ofthe state in this respect: Some could have thought that since the practice of the strike, this ‘cessation of activity, this “nonaction’” (Nicht-Handeln), isnot an action (184/E281}.. ‘That is how the concession of this right by the power ofthe state (Staatsgewal) is justified when that power connot do otherwise. Violence would come from the ‘employer and the strike would consist only in an abstention, a nonviolent with- ® Can what we are doing here resemble a general strike or a revolution, with regard to models and structures, but also modes of readability of political action? Is 38, CL my "The Rhetoric of Drugs” in Points a ACTS OF RELIGION that what deconstruction ist Is ita general strike, or a strategy of rupture? Yes and zo. Yes to the extent that it assumes the right to contest, and not only theoretically, constitutional protocols the very charter that governs reading in our culture and ‘especialy in the academy, No, at Jest to the extent chat it isin the academy that it has been developed (and let us not forget, if we do not wish to sink into ridicule or indecency, that we are comfortably installed here on Pith Avenue—only a few blocks away from the inferno of injustice). And besides, just asa strategy of rupture is never pure, since the lawyer or the accused have to “negotiate” it in some way before a tribunal ot in the course of a hunger strike in the prison, so too there is never @ puze opposition between the general political strike looking to refound another state and the general proletarian strike looking to destroy the state, “And so these Benjaminian oppositions appear more than ever to have to be constructed {parnissent done plus que jamais a déconstruire); they deconstct themselves, even as paradigans for deconstruction, What I am saying here is any- thing but conservative and antirevolutionary. For beyond Benjarin’s explicit pur- pose, I shall propose the interpzetation according to which the very violence of the foundation or positing of law (Rechtsetzende Gewalt) must envelop the violence of the preservation of law (Rechterkaltende Gewalt) and cannot break with it It ‘belongs to the structure of fundamental violence in thit t calls for the repetition of iteelf and founds what ought to be preserved, preservable, promised to heritage and to tradition, to partaking {partage]. A foundation is a promise. Every positing (Setaung) peemits and promises, posts ahead [permet et pro-metlit posits by st ting and by promising (em mettant et en promettant), And even if a promise is not kept in fact, iterabilityinscribes the promise as guard in the most irruptive instant ‘of foundation. Thus it inscribes the possibility of repetition atthe heart ofthe orig- ary, Better, o worse, itis inscribed inthis law {Joi] of iterablity; it stands under its law or before its law {sous sa foi ou devant sa loi}. Consequentty [du coup], there is no more pure foundation ot pure position of law, and so a pure founding vio- lence, than there isa purely preserving violence. Positing is already iterability, a call for self-preserving repetition, Preservation in its turn refounds, so that it can pre- ‘serve what it claims to found. Thus there can be no rigorous opposition between positing and preserving, only what I will cll (and Benjamin does not name it) « Gfferensial contamination between the two, with al the paradoxes that this may Jead to. No rigorous distinction between a genera strike and a partial strike (again, in an industrial society, we would also lack the technical eritezia for such a distine- tion), nor, in Georges Sorel’s sense, between a general political strike and a general proletarian strike, Deconstruction isalso the thought ofthis differential contamina tion—and the thought taken by the necessity ofthis contamination, FORCE OF LAW an Isis in thinking about this differential contamination, asthe contamination at the very heart of law that I single out this sentence of Benjamin's to which { hope to come back later: there is, he says “Something rotten in law (eswas Morsches im Recht)” (188/E286). There is something decayed or rotten inlaw, which condemns it or ruins it in advance, Law is condemned, rained, in ruins, ruinous, if one can risk sentence of death on the subject of aw, especially when itis a question of the death penalty. And it isin a passage on the death penalty that Benjamin speaks of what i “rotten” i law If there is something of strike and the right to strike in every interpretation, there i also war and polemos, War is another example of this contradiction internal 10 law. There isa law of war @ right to war [droit dela guerre] (Schmitt will com- hin that it sno longer recognized as the very posbilty of politic.) This lw involves the same contradictions as the right to strike. Apparently subjects of law declare wat in order to sanction violence, the ends of which appear natural (the ‘other wants to lay hold of territory, goods, women; he wants my death, [kill him). But this warlike violence that resembles “predatory violence (raubende Gewalt)” ‘outside the law [li] is always deployed within the sphere of law (185/E282).Itis an anomaly within the legal system with which it seems to break. Here the rupture of the relation is the relation. The transgression is before the law [Joi]. In so-called primitive societies, where these meanings would be more clearly brought out, according to Benjamin, the peace setlement shows very well that war was not a natural phenomenon. No peace is settled without the symbolic phenomenon of a ceremonial, which recalls the fact that there was already ceremony in war. War, then, did not simply amount to the clash of two interests or of two purely pysical forces, Here an important parenthesis emphasizes that, to be sure, in the pair ‘warfpeace the peace ceremonial recalls the fact that the war was also an unnatural phenomenon; but Benjamin apparently wants to withdraw a certain meaning of the word peace from this correlation, in particular in the Kantian eoncept of “per- petual peace.” Here itis « matter of a whole other “unmetaphorical and political (unmetaphorische snd politische)” signification (185/E283), the importance of hich we may weigh in moment. At stake is international law, where the risks of| diversion or perversion for the benefit of individual interests, whether those of a state or not, require an infinite vigilance, all the more soas these risks are inscribed in its very constitution. After the ceremony of wa, the ceremony of peace signifcs thatthe victory estab- lishes @ new law. And war, which passes for originary and archetypal (uspriinliche 38 Taaltors note Jebeot: "military lv" (E283). 24 ACTS OF RELIGION tnd urbildiche) violence in pursuit of natural ends, isin fact violence that serves to found law (rechtsetzende). From the momeiit that this positive, positing (set~ ‘zende) and founding character of another law is recognized, modern law refuses the individual subjectall right to violence (fowt doit ata violence). The people’sshudder of admiration before the “great criminal” is addressed to the individual who takes "upon himself as in primitive times, the stigma of the lawmaker or the prophet. Yet the distinction between the two types of violence (founding and preserving) will be very dificult to trace, to found or to preserve, We are going to witness an ambiguous and laborious movement on Benjamin's part to save at any costa dis- tinction or a correlation without which his whole project could collapse. For if vio~ lence sat the origin of law, understanding demands that the critique of this double ‘violence be brought to its logical conclusion, To discuss-the law-preserving vio- lence, Benjamin sticks to relatively modern problems, as modem as the problem of the general strike was a moment ago. Now it is « matter of compulsory military service, the modern police or the abolition of the death penalty. If, during and after World War I, an impassioned critique of violence was developed, it took aim this time at the law-preserving form of violence, Militarism, a modern concept that supposes the exploitation of compulsory military service, isthe forced use of force, the “compulsory” use (Zivang) of force or violence (Gevrat) in the service of the state end its legal ends. Here military violence is legal and preserves the law. Its Uherefore more difficult to erticize than the pacifists and activists believe in their “declamations} for which Benjamin does not hide his low esteem. The inffective- ness and inconsistency of antimilitary pacifistshas to do with their failure to recog nize the legl and unassailable character of this law-prescrving violence “Here we are dealing with a double bind or a contradiction that ean be schema- sized as follows: On the one hand, it appears easier to criticize the violence that founds since it cannot be justified by any preexisting legality and so appears savage, But on the other hand, and this reversal makes the whole worth ofthis reflection it is more difficult, more illegitimate to criticize this same founding violence since one ‘cannot summon it to appear before the institation of any preexisting law: it does hot recognize existing law in the moment that it founds another, Between the two limits of this contradiction, there isthe question of this ungraspable revolutionary instant, ofthis exceptional decision waich belongs to no historical, temporal contin- ‘gum but in which the foundation of a new law nevertheless plays [joue}, if one can say so, on something from an anterior law that it extend, radicalizes, deforms, netaphorizes or metonymizes—this igure here taking the names of war or general strike. But this Sgure is also a contamination. It effaces or blurs the distinction, “0 Teansor’s note: Jephcot "primordial and parodigmatc"(186/E28. FORCE OF LAW os pure and simple, between foundation and preservation. It inscribesiterabi originarty and this is what would call deconstruction at work, infill negotiation: in the “things” themselves and in Benjamin's text. Aslong as they do not give thennselves the theoretical or philosophical means to conceive this coimplication of violence and law, the usual critiques remain nitive and ineffectual, Benjamin does not hide his disdain forthe declamations of pacifit ‘activism and for the proclamations of “quite childish anarchism” that would like to ‘exempt the individual from all constraints. The reference to the categorical imper- ative ‘Act in such a way that at all times you use humanity both in your person and in the-person of all others as an end, and never merely as « means,” 187/8285), however uncontestable it may be allows for no critique of violence. Law in its very violence claims to recognize and defend said humanity as end, in the person of «ach individual And so a purely moral critique of violence would be as unjustified as impotent, For the same reason, one cannot provide a critique of violence in the name of liberty, of what Benjamin here calls “formless ‘feedom”” (gestaltlose ‘Freiheit) that is, in sum, « purely formal freedom, an empty form, following a ‘Marxist-Hegelian vein that is far from absent throughout this meditation (187/ 1285). These atiacks against violence lack pertinence and effectiveness because they remain alien to the juridical essence of violence to the “order of lav.” An effec- tive critique raust take issue with the body of law itself, in its head and in its mem- bers, with the laws {lnis] and the particular usages that law adopts under the protection ofits power (Macht), This order is such that there exists only one fate, a surique fate or history (nur ein einziges Schicksel, 187/E288). This is one of the Inajor concepts ofthe text, but also one of the most obscure, whether itis a ques- tion of fate itself or ofits absolute uniqueness, That which exists, which has consis- tency (das Bestehende) and that which atthe same time threatens what exists (das Drokende) belong inviolably (unverbrichlich) to the same order, and this order is inviolable because it is unique. It can only be violated within itself The notion of threat appears here indispensable. But it also remains difficult ¢o delimit for the threat does not come from outside. The law {le droit] is both threatening and threatened by itself. This treat is neither intimidation nor dissuasion, as pacifist, anarchists or activists believe, The law shows itself to be threatening in the way fate is threatening. To reach the “deepest meaning” of the indeterminacy (Unbestimmt- heit) of the legal threat (der Rechtsdrohung),* it will ater be necessary to meditate ‘upon the essence of fate that is atthe origin of this threat. In the course of a meditation on fate, which includes along the way an analysis of the police, the death penalty, and the parliamentary institution, Benjamin will 41, Translators nt Jephcou: "the wncataity ofthe leg threat” (E285) 295 ACTS OF RELIGION thus come to distinguish between divine justice and human justice, between the vine justice that destroys law and the raythic violence that found it Law-preserving violence, ths threat that is not intimidation, isa threat of law. Double genitive: i both comes from law and threatens law. A valuable index arises hhete from the domain of penalty law, the right to punish [le droit de punir] and the

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